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And under another line of cases, the government can obtain any information that you freely disclose to third parties. I’ll give you an example. If you keep your money in your mattress at home, they can’t touch it. They can’t look at it without getting a warrant. But if you give it to a bank, then you’ve disclosed it to a third party; it’s no longer private and the government can obtain it without complying with the Fourth Amendment. It’s a doctrine that has huge implications in the era of electronic communications, because basically we don’t ever communicate with each other anymore, except maybe in the bedroom, that doesn’t go through some sort of an electronic means. And this is a huge problem.
The Supreme Court Justice Sotomayor wrote about it in a case by the name of Jones. That was a case where they attached a GPS tracker to somebody’s car. And the Supreme Court said that was a violation of the Fourth Amendment because they attached the GPS tracker to the car. Leaving it open to the question: “What if they can track it without having to attach anything to the car?” Incredibly difficult, incredibly complex question. It really will test who we are and what we think about individual privacy when the Supreme Court finally addresses the issues head-on.
But, you know, every one of you can contribute to the answer to that question. Because this idea of a “reasonable expectation of privacy” is not so much what you expect but how we act as a society. If you post things on Facebook, if you put private photos on Facebook and other such social media sites, if you contribute to an environment where, as a society, we don’t view the privacy of certain communications and certain activities as being sacrosanct, as being something that we should not disclose to the public, then you contribute to an environment where, when the Court does look at it, it views it realistically in the world, and it’ll say, “Well, people must not care very much about the privacy of their private photos because look, they post all these on Facebook where the world can see them. They must not care so much about communications because they shout them out where everybody can hear them.”
So what I do is, if I’m in an airport and I hear someone loudly talking on a telephone, I make myself part of the conversation. I nod. If they say something sad I look glum. If they say a joke, I laugh. I genuinely want to make them know that I’m a part of their conversation. And I think it’s important for all of us to be aware of this and all of us to be aware that when you give up your own privacy, you’re not just giving up your own privacy, but you’re contributing to a society where the idea of privacy is undervalued.
And who is going to be the beneficiary of that? It’s going to be the government. Because you cannot deny the government anything that is open to any other party. That’s the rule, and it’s a fair one. If people treat things as not private; if people disclose them to everybody in the world, well, certainly law enforcement is entitled to that as well.
So be really careful of it. It’s a precious commodity. It’s something that we take for granted and it’s one of those things that’s going to go away so quickly and disappear, and it’ll all be our doing. We’ll look back on it and we’ll ask ourselves who did it and it’ll be like [the comic strip] Pogo: You met the enemy and he is us.
reason: Where does “the cloud” stand in all this?
Kozinski: Until further notice, I would not consider anything you put on the cloud private. Is that clear? I’m not saying it’s not going to be, but it’s a highly undecided question. Essentially, if it’s a new computer on your desk where the police actually have to go in and get the physical thing, it’s protected. It’s not protected from everything—obviously there’s probable cause, a warrant; they can get it. But it’s protected from unauthorized intrusion.
If it’s some place in the hands of third parties, it’s like your bank information. You think your bank information is private, but no, it’s not. You’ve disclosed your information to the bank, the government can get it. You disclose it to a third party in the cloud, the chances are very good that if the government wants it, it can take it.
Some of it depends on the people who run the Internet service providers, the people who handle the cloud storage. Some fight back. Google fought back when the Justice Department asked for certain queries by their users. Some other search engines I will not mention did not fight back. Some phone companies are cheery about giving out your location information, other phone companies will, for a fee, let law enforcement ping your phone. And they can ping it as often as they want and know exactly where you are by pinging your phone. Is there anybody here that doesn’t have at least one cell device on them right this minute? I didn’t think so. So when they ping all our phones they will find where the great libertarian conspiracy is located. Right here.
But they can do it. Some phone companies, for a fee, actually have a self-serve website where law enforcement can go in, ping your phone, and know exactly where you are. Pretty neat, huh? So anyway, the answer is, kiss it goodbye.
reason: Let’s work our way quickly down the amendment list. Maybe a happier story, or a more surprising story: Did you imagine when you were first getting involved in the law that the Second Amendment would be recognized as an individual right to bear arms? Was that something that you thought was in the cards in 1975 or 1982? How much of it was a surprise in 2008?
Kozinski: Certainly in 1975 there was no inkling at all. There was a Supreme Court case that everybody interpreted as—it didn’t exactly say that, but everybody interpreted as saying there is no individual right to bear arms. But then starting about the mid-’80s there was a series of very serious scholarly articles written in law journals that challenged that notion. And that’s the first time that I gave the matter any serious thought.
I didn’t have any particular reason to read about the Second Amendment. I didn’t have any cases, I just had general knowledge. But I saw the articles, and they were really quite persuasive. And once I saw the articles, I said: You know, ideas have consequences. And ideas that are well-reasoned and forcefully stated tend to eventually find their way to the courts and eventually find their way to cases and to our law.
One of the first of those articles was called, “The Embarrassing Second Amendment.” It was written by a liberal scholar who found it embarrassing to actually read the Second Amendment since it seemed to say there was an individual right to bear arms.